Постановление Европейского суда по правам человека от 05.02.2009 "Дело "Сан (Sun) против Российской Федерации" [рус., англ.]

/> Article 86. Measures taken in respect of physical evidence upon completion of a criminal case
"The judgment, interim decision or decision on discontinuation of proceedings must deal with the destiny of physical evidence in the following manner:
(1) instruments of the crime belonging to the accused are liable to confiscation, transfer to competent authorities or destruction;
(2) objects banned from circulation must be transferred to competent authorities or destroyed;
(3) unusable objects of no value must be destroyed...;
(4) criminally acquired money and other valuables must revert to the State by a judicial decision; any other objects must be returned to their lawful owners or, if the identity of the owner cannot be established, transferred to the State...
(5) documents must be kept with the case file..."
15. The Resolution of the Plenary Supreme Court of the USSR "On judicial practice regarding the offence of smuggling" (No. 2 of 3 February 1978) provided as follows:
"7. In accordance with the current legislation, the objects of smuggling are liable to confiscation to the State as physical evidence. Vehicles and other means of transport are also liable to confiscation as instruments of the crime provided that they were equipped with special hiding places for concealing goods or other valuables..."
16. The Resolution of the Plenary Supreme Court of the USSR "On confiscation of the instruments of the offence that were recognised as physical evidence in the case" (No. 19 of 16 August 1984) provided as follows:
"Having regard to the questions relating to the possibility of applying Article 86 § 1 of the RSFSR Code of Criminal Procedure... in cases of negligent criminal offences, the Plenary USSR Supreme Court resolves -
- to clarify that the objects belonging to the convict and declared to be physical evidence may be confiscated on the basis of Article 86 (1) of the RSFSR Code of Criminal Procedure... only if the convict or his accomplices deliberately used them as the instruments of the crime with a view to achieving a criminal result."
17. The Presidium of the Supreme Court of the Russian Federation in the case of Prosecutor General v. Petrenko (decision No. 446p98pr of 10 June 1998) granted the prosecution's appeal against the judgment, by which Mr Petrenko had been found guilty of smuggling foreign currency but the money had been returned to him on the ground that Article 188 of the Criminal Code did not provide for confiscation as a penal sanction. The Presidium held as follows:
"Confiscation of property as a penal sanction must be distinguished from confiscation of smuggled objects which were recognised as physical evidence. These issues must be addressed separately in the judgment...
In the meaning of [Article 86 (1) of the RSFSR Code of Criminal Procedure] and also Article 83 of the CCrP, an instrument of the offence is any object which has been used for accomplishing publicly dangerous actions, irrespective of the main purpose of the object. Accordingly, the notion of an instrument of the offence comprises the object of the offence.
A mandatory element of a criminal offence under Article 188 of the Criminal Code is an object of smuggling that is being illegally transported across the customs border... The court found Mr Petrenko guilty of [attempted smuggling], noting that the US dollars were the object of the offence. Accordingly, it was required to decide on the destiny of physical evidence in accordance with Article 86 § 1 of the CCrP - that is, according to the rules on the instruments of the offence - but failed to do so."

THE LAW

I. Alleged violation of Article 1 of Protocol No. 1

18. The applicant complained under Articles 6 and 7 § 1 of the Convention and Article 1 of Protocol No. 1 that the



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